[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Rules and Regulations]
[Pages 80132-80134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25461]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0052]
RIN 1625-AA00


Safety Zone; Hurricanes, Tropical Storms, and Other Storms With 
High Winds; Captain of the Port Zone Sector North Carolina

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a safety zone to be enforced 
in the event of hurricanes and tropical storms in the Sector North 
Carolina Captain of the Port (COTP) Zone. This action is necessary to 
ensure the safety of the waters of the Sector North Carolina COTP Zone. 
This rule establishes actions to be completed by industry and vessels 
in the COTP Zone prior to landfall of hurricanes and tropical storms 
threatening the State of North Carolina.

DATES: This rule is effective December 18, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0052 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions about this rule, 
call or email Petty Officer Ken Farah, Waterways Management Division, 
U.S. Coast Guard; telephone 910-772-2221, email 
<a href="/cdn-cgi/l/email-protection#0f616c626e7d66616a6a796a617b7c4f7a7c6c6821626663"><span class="__cf_email__" data-cfemail="aac4c9c7cbd8c3c4cfcfdccfc4ded9eadfd9c9cd84c7c3c6">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    North Carolina has the potential to be affected by hurricanes and 
tropical storms on a yearly basis, especially between the months of 
June and November. The Sector North Carolina Captain of the Port (COTP) 
proposed establishing a safety zone to provide for the safety of life 
and for the protection of port infrastructure and of the environment 
during such storms. In response, on July 14, 2023, the Coast Guard 
published a notice of proposed rulemaking (NPRM) titled ``Safety Zone; 
Hurricanes and Tropical Storms in Captain of the Port Zone North 
Carolina'' (88 FR 45123). There we stated why we issued the NPRM and 
invited comments on our proposed regulatory action related to this 
safety zone. During the comment period that ended August 14, 2023, we 
received no comments.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The COTP of Sector North Carolina has determined that the 
establishment of a safety zone to be enforced in case of hurricanes and 
heavy weather in North Carolina is necessary to ensure the safety of 
the waters of the COTP Zone Sector North Carolina. This safety zone 
establishes actions to be completed by local industry and vessels in 
the COTP zone prior to landfall of hurricanes and heavy weather 
threatening the State of North Carolina. The safety zone consists of 
all navigable waters of the United States in the Sector North Carolina 
COTP Zone, as defined in 33 CFR 3.25-20. Portions of the safety zone 
may be activated at different times, as conditions dictate.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published July 
14, 2023. While there were no comments to the proposed rule, the 
following change was made to this rule. The name of the rule was 
changed to ``Safety Zone; Hurricanes and Heavy Weather in Captain of 
the Port Zone Sector North Carolina'' in order to harmonize this to 
similar rules within U.S. Coast Guard District 5. There are no changes 
in the regulatory text of this rule from the proposed rule in the NPRM.
    This action is necessary to ensure the safety of the waters of the 
COTP Zone Sector North Carolina as it establishes actions to be 
completed by local industry and vessels in the COTP zone prior to 
landfall of hurricanes and tropical storms threatening the State of 
North Carolina. This safety zone consists of all navigable waters of 
the United States in the Sector North Carolina COTP Zone, as defined in 
33 CFR 3.25-20. Portions of the safety zone may be activated at 
different times, as conditions dictate.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and

[[Page 80133]]

Executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. This rule has not been designated a ``significant 
regulatory action,'' under section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB).
    This regulatory action determination is based on the necessity to 
protect life and port infrastructure during hurricanes and tropical 
storms. The scope of the regulation is narrow and will only apply when 
a hurricane or tropical storm impacts the navigable waters of the 
Sector North Carolina Captain of the Port Zone. These events are 
infrequent and of relatively short duration. Regulatory restrictions 
will be lifted as soon as practicable following the passage of a named 
storm.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. The Coast Guard received no comments from the Small Business 
Administration on this rulemaking. The Coast Guard certifies under 5 
U.S.C. 605(b) that this rule will not have a significant economic 
impact on a substantial number of small entities.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
call or email the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, this rule does not have tribal implications under Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it does not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast 
Guard in complying with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321-4370f), and have determined that this action is one of 
a category of actions that do not individually or cumulatively have a 
significant effect on the human environment. This rule involves a 
safety zone that prohibits entry in certain waters of the Sector North 
Carolina COTP Zone for the duration needed to ensure safe transit of 
vessels and industry post-hurricane, post-storm, and post-emergency. It 
is categorically excluded from further review under paragraph L60(a) of 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A 
Record of Environmental Consideration supporting this determination is 
available in the docket. For instructions on locating the docket, see 
the ADDRESSES section of this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email the person listed in the FOR 
FURTHER INFORMATION CONTACT section to coordinate protest activities so 
that your message can be received without jeopardizing the safety or 
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Marine safety, Navigation, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.


0
2. Add Sec.  165.562 to read as follows:


Sec.  165.562   Safety Zone; Hurricanes, Tropical Storms, and other 
Storms with High Winds; Captain of the Port Zone Sector North Carolina.

    (a) Regulated Areas. All navigable waters of the United States 
within

[[Page 80134]]

Sector North Carolina COTP Zone as described in 33 CFR 3.25-20, during 
specified port conditions. Port conditions and safety zone activation 
may vary for different regions of the regulated area at different 
times, based on storm conditions and projected track.
    (b) Definitions. (1) Captain of the Port means the Commander, Coast 
Guard Sector North Carolina.
    (2) Representative means any Coast Guard commissioned, warrant, or 
petty officer or civilian employee who has been authorized to act on 
the behalf of the Captain of the Port.
    (3) Port Condition WHISKEY means a condition set by the COTP when 
National Weather Service (NWS) weather advisories indicate sustained 
gale force winds (39-54 mph/34-47 knots) from a tropical or hurricane 
force storm are predicted to make landfall at the Port of Wilmington or 
Port of Morehead City within 72 hours.
    (4) Port Condition X-RAY means a condition set by the COTP when NWS 
weather advisories indicate sustained gale force winds (39-54 mph/34-47 
knots) from a tropical or hurricane force storm are predicted to make 
landfall at the port within 48 hours.
    (5) Port Condition YANKEE means a condition set by the COTP when 
NWS weather advisories indicate that sustained gale force winds (39-54 
mph/34-47 knots) from a tropical or hurricane force storm are predicted 
to make landfall at the port within 24 hours.
    (6) Port Condition ZULU means a condition set by the COTP when NWS 
weather advisories indicate that sustained gale force winds (39-54 mph/
34-47 knots) from a tropical or hurricane force storm are predicted to 
make landfall at the port within 12 hours.
    (7) Port Condition RECOVERY means a condition set by the COTP when 
NWS weather advisories indicate that sustained gale force winds (39-54 
mph/34-47 knots) from a tropical or hurricane force storm are no longer 
predicted for the designated area. This port condition remains in 
effect until the regulated areas are deemed safe and reopened to normal 
operations.
    (c) Regulations--(1) Port Condition WHISKEY. All vessels must 
exercise due diligence in preparation for potential storm impacts. 
Ports and waterfront facilities are encouraged to remove all debris and 
secure potential flying hazards. All self-propelled oceangoing vessels 
over 500 gross tons (GT), all oceangoing tank barges and their 
supporting tugs, and all tank barges over 200 GT wishing to remain in 
port should seek approval from the COTP prior to Port Condition X-Ray.
    (2) Port Condition X-RAY. All vessels and port facilities are 
encouraged to ensure potential flying debris and hazardous materials 
are removed or secured. All self-propelled oceangoing vessels over 500 
gross tons (GT), all oceangoing tank barges and their supporting tugs, 
and all tank barges over 200 GT without COTP approval to remain in port 
must depart prior to the setting of Port Condition Yankee. Vessels with 
COTP permission to remain in port must implement their approved mooring 
arrangement.
    (3) Port Condition YANKEE. Affected ports are closed to all inbound 
vessel traffic. All self-propelled oceangoing vessels over 500 gross 
tons (GT), all oceangoing tank barges and their supporting tugs, and 
all tank barges over 200 GT must have departed designated ports within 
the Sector North Carolina COTP zone unless they have received COTP 
approval to remain in port.
    (4) Port Condition ZULU. Affected ports and waterways are closed to 
all vessel traffic unless specifically authorized by the COTP or 
representative. Cargo operations are suspended, including bunkering and 
lightering. The COTP may grant cargo transfer waivers unless a Cargo of 
Particular Hazard or Certain Dangerous Cargo is involved.
    (5) Port Condition RECOVERY. Designated areas are closed to all 
commercial traffic and recreational vessels 65-feet in length and 
greater. Based on assessments of channel conditions, navigability 
concerns, and hazards to navigation, the COTP may permit vessel 
movements with restrictions. Restrictions may include, but are not 
limited to, preventing or delaying vessel movements, imposing draft, 
speed, size, horsepower or daylight restrictions, or directing the use 
of specific routes. Vessels permitted to transit the regulated area 
shall comply with the lawful orders or directions given by the COTP or 
designated representative.
    (6) Safety Zones Notice. Coast Guard Sector North Carolina will 
attempt to notify the maritime community of periods during which these 
safety zones will be in effect via Broadcast Notice to Mariners, Marine 
Safety Information Broadcast, or by on-scene designated 
representatives.
    (7) Regulated Area Notice. The Coast Guard will provide notice of 
the regulated area via Broadcast Notice to Mariners, Marine Safety 
Information Broadcast, or by on-scene designated representatives.
    (8) Exception. This regulation does not apply to authorized law 
enforcement agencies operating within the regulated area.

Timothy J. List,
Captain, U.S. Coast Guard, Captain of the Port, Sector North Carolina.
[FR Doc. 2023-25461 Filed 11-16-23; 8:45 am]
BILLING CODE 9110-04-P


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